Home

Back to Table of Contents

Ponca Tribe of Nebraska Tribal Code

Title XIII. Secured Transactions Act
Chapter 6. Default

Section 13-6-1. Rights After Default; Judicial Enforcement; Consignor or Buyer of Accounts, Chattel Paper, Payment Intangibles, or Promissory Notes

Section 13-6-2. Waiver And Variance Of Rights And Duties

Section 13-6-3. Agreement On Standards Concerning Rights And Duties

Section 13-6-4. Procedure If Security Agreement Covers Real Property Or Fixtures

Section 13-6-5. Unknown Debtor Or Secondary Obligor

Section 13-6-6. Collection And Enforcement By Secured Party

Section 13-6-7. Application Of Proceeds Of Collection Or Enforcement; Liability For Deficiency And Right To Surplus

Section 13-6-8. Secured Party’s Limited Right To Take Possession After Default

Section 13-6-9. Disposition Of Collateral After Default

Section 13-6-10. Notification Before Disposition Of Collateral

Section 13-6-11. Timeliness Of Notification Before Disposition Of Collateral

Section 13-6-12. Contents And Form Of Notification Before Disposition Of Collateral

Section 13-6-13. Application Of Proceeds Of Disposition; Liability For Deficiency And Right To Surplus

Section 13-6-14. Explanation Of Calculation Of Surplus Or Deficiency

Section 13-6-15. Rights Of Transferee Of Collateral

Section 13-6-16. Rights And Duties Of Certain Secondary Obligors

Section 13-6-17. Transfer Of Record Or Legal Title

Section 13-6-18. Acceptance Of Collateral In Full Or Partial Satisfaction Of Obligation; Notification Of Proposal; Effect Of Acceptance; Compulsory Disposition Of Collateral

Section 13-6-19. Right To Redeem Collateral

Section 13-6-20. Waiver
SUBPART 2. NONCOMPLIANCE WITH ACT

Section 13-6-21. Remedies For Secured Party’s Failure To Comply With Act

Section 13-6-22. Action In Which Deficiency Or Surplus Is In Issue

Section 13-6-23. Determination Of Whether Conduct Was Commercially Reasonable

Section 13-6-24. Nonliability And Limitation On Liability Of Secured Party; Liability Of Secondary Obligor

Section 13-6-25. Attorney’s Fees In Certain Transactions

PTN Code § 13-6-1
Section 13-6-1. Rights After Default; Judicial Enforcement; Consignor or Buyer of Accounts, Chattel Paper, Payment Intangibles, or Promissory Notes

(a) After default, a secured party has the rights provided in this part, the rights and duties related to possession or control of collateral (Section 13-2-4) and, except as otherwise provided in the provisions of this Act dealing with waivers and variances of rights and duties (Section 13-6-2), those provided by agreement of the parties. A secured party:

(1) may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, by any available judicial procedure; and

(2) if the collateral is documents, may proceed either as to the documents or as to the goods they cover.

(b) The rights under subsections (a) are cumulative and may be exercised simultaneously.

(d) Except as otherwise provided in subsection (g) and under the provisions of this Act dealing with an unknown debtor or a secondary obligor (Section 13-6-5), after default, a debtor and an obligor have the rights provided in this part and by agreement of the parties.

(e) If a secured party has reduced its claim to judgment, the lien of any levy that may be made upon the collateral by virtue of an execution based upon the judgment relates back to the earliest of:

(1) the date of perfection of the security interest in the collateral;

(2) the date of filing a financing statement covering the collateral; or

(3) any date specified in a statute under which the lien was created.

(f) A sale pursuant to an execution is a foreclosure of the security interest by judicial procedure within the meaning of this section. A secured party may purchase at the sale and thereafter hold the collateral free of any other requirements of this Act.

(g) Except as otherwise provided in the provisions of this Act dealing with commercially reasonable collection and enforcement (Section 13-6-6(b)), this part imposes no duties upon a secured party that is a consignor or is a buyer of accounts, chattel paper, payment intangibles, or promissory notes.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-1, PTN Code § 13-6-1



PTN Code § 13-6-2
Section 13-6-2. Waiver and Variance of Rights and Duties

Except as otherwise provided in the provisions of this Act dealing with waivers (Section 13-6-24), to the extent that they give rights to a debtor or obligor and impose duties on a secured party, the debtor or obligor may not waive or vary the rules stated in the following sections of this Act dealing with:

(1) rights and duties when collateral is in a secured party's possession (Section 13-2-4);

(2) requests for an accounting or requests regarding a list of collateral or statement of an account (Section 13-207);

(3) commercially reasonable collection and enforcement (Section 13-607(b));

(4) application of proceeds, deficiency and surplus (Sections 13-608(a) and 13-6-14(c)), to the extent that they deal with application or payment of noncash proceeds of collection, enforcement, or disposition;

(5) application of proceeds and the like (Sections 13-608 and 13-6-14(d)), to the extent that they require accounting for or payment of surplus proceeds of collateral;

(6) a secured party's right to take possession after default and limitations thereon (Section 13-6-9), to the extent that it imposes upon the secured party taking possession of collateral without judicial process the duty to do so without breach of the peace and with consent of the debtor;

(7) commercially reasonable disposition (Section 13-610(b)), notification before disposition of the collateral (Section 13-611), and the contents and form of a notification before disposition of the collateral (Section 13-6-13);

(8) calculation of a deficiency or surplus when the fairness of the amount of proceeds is placed in issue (Section 13-6-15(e));

(9) explanation of the calculation of a surplus or deficiency (Section 13-6-16);

(10) acceptance of collateral in satisfaction of obligation (Section 13-6-20);

(11) right to redeem collateral (Section 13-6-23);

(12) waivers (Section 13-6-24);

(13) the secured party's liability for failure to comply with this Act (Sections 13-6-25 and 13-6-26); and

(14) attorney's fees (Section 13-6-29).

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-2, PTN Code § 13-6-2




PTN Code § 13-6-3
Section 13-6-3. Agreement on Standards Concerning Rights and Duties

The parties may determine by agreement the standards measuring the fulfillment of the rights of a debtor or obligor and the duties of a secured party under a rule stated in the provisions of this Act dealing with waiver or variance of rights and duties (Section 13-6-3), if the standards are not manifestly unreasonable.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-3, PTN Code § 13-6-3

 




PTN Code § 13-6-4
Section 13-6-4. Procedure if Security Agreement Covers Real Property or Fixtures

(a) If a security agreement covers both personal and real property, a secured party may proceed:

(1) under this part as to the personal property without prejudicing any rights with respect to the real property; or

(2) as to both the personal property and the real property in accordance with the rights with respect to the real property, in which case the other provisions of this part do not apply.

(b) Subject to subsection (c), if a security agreement covers goods that are or become fixtures, a secured party may proceed:

(1) under this part; or

(2) in accordance with the rights with respect to real property, in which case the other provisions of this part do not apply.

(c) Subject to the other provisions of this part, if a secured party holding a security interest in fixtures has priority over all owners and encumbrancers of the real property, the secured party, after default, may remove the collateral from the real property.

(d) A secured party that removes collateral shall promptly reimburse any encumbrancer or owner of the real property, other than the debtor, for the cost of repair of any physical injury caused by the removal. The secured party need not reimburse the encumbrancer or owner for any diminution in value of the real property caused by the absence of the goods removed or by any necessity of replacing them. A person entitled to reimbursement may refuse permission to remove until the secured party gives adequate assurance for the performance of the obligation to reimburse.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-4, PTN Code § 13-6-4




PTN Code § 13-6-5
Section 13-6-5. Unknown Debtor or Secondary Obligor

A secured party does not owe a duty based on its status as secured party:

(1) to a person that is a debtor or obligor, unless the secured party knows:

(A) that the person is a debtor or obligor;

(B) the identity of the person; and

(C) how to communicate with the person; or

(2) to a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

(A) that the person is a debtor; and

(B) the identity of the person.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-5, PTN Code § 13-6-5



PTN Code § 13-6-6
Section 13-6-6. Collection and Enforcement by Secured Party

(a) If so agreed, and in any event after default, a secured party:

(1) may notify an account debtor or other person obligated on collateral to make payment or otherwise render performance to or for the benefit of the secured party;

(2) may take any proceeds to which the secured party is entitled under Section 13-3-10;

(3) may enforce the obligations of an account debtor or other person obligated on collateral and exercise the rights of the debtor with respect to the obligation of the account debtor or other person obligated on collateral to make payment or otherwise render performance to the debtor, and with respect to any property that secures the obligations of the account debtor or other person obligated on the collateral;

(b) A secured party shall proceed in a commercially reasonable manner if the secured party:

(1) undertakes to collect from or enforce an obligation of an account debtor or other person obligated on collateral; and

(2) is entitled to charge back uncollected collateral or otherwise to full or limited recourse against the debtor or a secondary obligor.

(c) A secured party may deduct from the collections made pursuant to subsection (c) reasonable expenses of collection and enforcement, including reasonable attorney's fees and legal expenses incurred by the secured party.

(d) This section does not determine whether an account debtor, bank, or other person obligated on collateral owes a duty to a secured party.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-6, PTN Code § 13-6-6



PTN Code § 13-6-7
Section 13-6-7. Application of Proceeds of Collection or Enforcement; Liability for Deficiency and Right to Surplus

(a) If a security interest secures payment or performance of an obligation, the following rules apply:

(1) A secured party shall apply or pay over for application the cash proceeds of collection or enforcement under Section 13-6-6 in the following order to:

(A) the reasonable expenses of collection and enforcement and, to the extent provided for by agreement and not prohibited by law, reasonable attorney's fees and legal expenses incurred by the secured party;

(B) the satisfaction of obligations secured by the security interest under which the collection or enforcement is made; and

(C) the satisfaction of obligations secured by any subordinate security interest in or other lien on the collateral subject to the security interest under which the collection or enforcement is made if the secured party receives a signed demand for proceeds before distribution of the proceeds is completed.

(2) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder complies, the secured party need not comply with the holder's demand under paragraph (1)(C).

(3) A secured party need not apply or pay over for application noncash proceeds of collection and enforcement under Section 13-6-6 unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.

(4) A secured party shall account to and pay a debtor for any surplus, and the obligor is liable for any deficiency.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-7, PTN Code § 13-6-7




PTN Code § 13-6-8
Section 13-6-8. Secured Party's Limited Right to Take Possession After Default

(a) Unless otherwise agreed, a secured party has at the time of or after default the powers described in subsection (b), but such powers may be exercised only pursuant to judicial process or with the debtor's consent. Such consent is effective only if expressed after default by means of a separate dated and signed personal statement in the debtor's handwriting, describing the powers to be exercised by the secured party and expressly acknowledging and waiving the debtor's right to require that such exercise be pursuant to judicial process.

(b) Under the circumstances of subsection (a) the secured party may:

(1) take possession of the collateral;

(2) without removal, render equipment unusable and dispose of collateral on a debtor's premises under Section 13-610; and

(3) require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties.

(c) A secured party acting pursuant to the debtor's consent under subsection (a) must proceed without breach of the peace.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-8, PTN Code § 13-6-8




PTN Code § 13-6-9
Section 13-6-9. Disposition of Collateral After Default

(a) After default, a secured party may sell, lease, license, or otherwise dispose of any or all of the collateral in its present condition or following any commercially reasonable preparation or processing.

(b) Every aspect of a disposition of collateral, including the method, manner, time, place, and other terms, must be commercially reasonable. If commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms. In order to protect the debtor's right to redeem collateral (Section 13-6-22), a disposition of collateral shall take place only on a tribal business day.

(c) A secured party may purchase collateral:

(1) at a public disposition; or

(2) at a private disposition only if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.

(d) A contract for sale, lease, license, or other disposition includes the warranties relating to title, possession, quiet enjoyment, and the like which by operation of law accompany a voluntary disposition of property of the kind subject to the contract.

(e) A secured party may disclaim or modify warranties under subsection (d):

(1) in a manner that would be effective to disclaim or modify the warranties in a voluntary disposition of property of the kind subject to the contract of disposition; or

(2) by communicating to the purchaser a record evidencing the contract for disposition and including an express disclaimer or modification of the warranties.

(f) A record is sufficient to disclaim warranties under subsection (e) if it indicates “There is no warranty relating to title, possession, quiet enjoyment, or the like in this disposition” or uses words of similar import.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-9, PTN Code § 13-6-9




PTN Code § 13-6-10
Section 13-6-10. Notification Before Disposition of Collateral

(a) In this section, “notification date” means the earlier of the date on which:

(1) a secured party sends to the debtor and any secondary obligor a signed notification of disposition; or

(2) the debtor and any secondary obligor waive the right to notification.

(b) [Notification of disposition required.] Except as otherwise provided in subsection (d), a secured party that disposes of collateral under Section 13-6-9 shall send to the persons specified in subsection (c) a reasonable signed notification of disposition.

(c) To comply with subsection (b), the secured party shall send a signed notification of disposition to:

(1) the debtor;

(2) any secondary obligor; and

(3) if the collateral is other than consumer goods:

(A) any other person from which the secured party has received, before the notification date, a signed notification of a claim of an interest in the collateral;

(B) any other secured party or lienholder that, fourteen (14) calendar days before the notification date, held a security interest in or other lien on the collateral perfected by the filing of a financing statement that:

(i) identified the collateral;

(ii) was indexed under the debtor's name as of that date; and

(iii) was filed in the office in which to file a financing statement against the debtor covering the collateral as of that date; and

(C) any other secured party that, fourteen (14) calendar days before the notification date, held a security interest in the collateral perfected by compliance with other applicable law (Section 13-311).

(d) Subsection (b) does not apply if the collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market.

(e) A secured party complies with the requirement for notification prescribed by subsection (c)(3)(B) if:

(1) not later than twenty (20) calendar days or earlier than thirty (30) calendar days before the notification date, the secured party requests, in a commercially reasonable manner, information concerning financing statements indexed under the debtor's name in the office indicated in subsection (c)(3)(B); and

(2) before the notification date, the secured party:

(A) did not receive a response to the request for information; or

(B) received a response to the request for information and sent a signed notification of disposition to each secured party or other lienholder named in that response whose financing statement covered the collateral.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-10, PTN Code § 13-6-10

PTN Code § 13-6-11
Section 13-6-11. Timeliness of Notification Before Disposition of Collateral

(a) Except as otherwise provided in subsection (b), whether a notification is sent within a reasonable time is a question of fact.

(b) Unless a specific time for sending a notification of disposition is established by the court, a notification of disposition is sent within a reasonable time before the disposition when it is sent after default and:

(1) in a consumer transaction, twenty (20) calendar days or more before the earliest time of disposition set forth in the notification; or

(2) in all other transactions, ten (10) calendar days or more before the earliest time of disposition set forth in the notification.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-11, PTN Code § 13-6-11



PTN Code § 13-6-12
Section 13-6-12. Contents and Form of Notification Before Disposition of Collateral

The following rules apply to notification before disposition of collateral:

(1) The contents of a notification of disposition are sufficient if the notification:

(A) describes the debtor and the secured party;

(B) describes the collateral that is the subject of the intended disposition;

(C) states the method of intended disposition;

(D) states that the debtor is entitled to an accounting of the unpaid indebtedness and states the charge, if any, for an accounting;

(E) states the time and place of a public disposition or the time after which any other disposition is to be made;

(F) describes any liability for a deficiency by the person receiving the notice; and

(G) states a telephone number or mailing address from which additional information concerning redemption, disposition and the obligation secured is available.

(2) Whether the contents of a notification that lacks any of the information specified in paragraph (1) are nevertheless sufficient is a question of fact.

(3) The contents of a notification providing substantially the information specified in paragraph (1) are sufficient, even if the notification includes:

(A) information not specified by that paragraph; or

(B) minor errors that are not seriously misleading.

(4) A particular phrasing of the notification is not required.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-12, PTN Code § 13-6-12




PTN Code § 13-6-13
Section 13-6-13. Application of Proceeds of Disposition; Liability for Deficiency and Right to Surplus

(a) A secured party shall apply or pay over for application the cash proceeds of disposition under Section 13-6-9 in the following order to:

(1) the reasonable expenses of retaking, holding, preparing for disposition, processing, and disposing, and, to the extent provided for by agreement and not prohibited by law, reasonable attorney's fees and legal expenses incurred by the secured party;

(2) the satisfaction of obligations secured by the security interest under which the disposition is made;

(3) the satisfaction of obligations secured by any subordinate security interest in or other subordinate lien on the collateral if:

(A) the secured party receives from the holder of the subordinate security interest or other lien a signed demand for proceeds before distribution of the proceeds is completed; and

(B) in a case in which a consignor has an interest in the collateral, the subordinate security interest or other lien is senior to the interest of the consignor; and

(4) a secured party that is a consignor of the collateral if the secured party receives from the consignor a signed demand for proceeds before distribution of the proceeds is completed.

(b) If requested by a secured party, a holder of a subordinate security interest or other lien shall furnish reasonable proof of the interest or lien within a reasonable time. Unless the holder does so, the secured party need not comply with the holder's demand under subsection (a)(3).

(c) A secured party need not apply or pay over for application noncash proceeds of disposition under Section 13-610 unless the failure to do so would be commercially unreasonable. A secured party that applies or pays over for application noncash proceeds shall do so in a commercially reasonable manner.

(d) If the security interest under which a disposition is made secures payment or performance of an obligation, after making the payments and applications required by subsection (a) and permitted by subsection (c):

(1) unless subsection (a)(4) requires the secured party to apply or pay over cash proceeds to a consignor, the secured party shall account to and pay a debtor for any surplus; and

(2) the obligor is liable for any deficiency.

(e) Following a disposition to the secured party or a person related thereto, the surplus or deficiency is calculated based on the amount of proceeds that would have been realized in a hypothetical disposition complying with this part to a person other than the secured party or a person related thereto, if the debtor establishes that the amount of proceeds of the actual disposition is significantly below the range of proceeds that would have been brought by the hypothetical disposition. For purposes of this section, a secondary obligor is a person related to the secured party.

(f) A secured party that receives cash proceeds of a disposition in good faith and without knowledge that the receipt violates the rights of the holder of a security interest or other lien that is not subordinate to the security interest under which the disposition is made:

(1) takes the cash proceeds free of the security interest or other lien;

(2) is not obligated to apply the proceeds of the disposition to the satisfaction of obligations secured by the security interest or other lien; and

(3) is not obligated to account to or pay the holder of the security interest or other lien for any surplus.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-13, PTN Code § 13-6-13




PTN Code § 13-6-14
Section 13-6-14. Explanation of Calculation of Surplus or Deficiency

(a) In a consumer transaction, a secured party must provide the debtor or consumer obligor a reasonably detailed explanation in a record of the manner in which any surplus or deficiency was calculated if the debtor or consumer obligor demands such an explanation or, in any event, ten (10) tribal business days before commencing an Action for a deficiency.

(b) Each debtor or consumer obligor is entitled without charge to one response to a request under this section during any six-month period in which the secured party did not send to the debtor or consumer obligor an explanation pursuant to subsection (b)(1). The secured party may require payment of a charge not exceeding $25 for each additional response.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-14, PTN Code § 13-6-14




PTN Code § 13-6-15
Section 13-6-15. Rights of Transferee of Collateral

(a) A secured party's disposition of collateral after default:

(1) transfers to a transferee for value all of the debtor's rights in the collateral;

(2) discharges the security interest under which the disposition is made; and

(3) discharges any subordinate security interest or other subordinate lien [other than liens created under [cite Acts or statutes providing for liens, if any, that are not to be discharged]].

(b) A transferee that Acts in good faith takes free of the rights and interests described in subsection (a), even if the secured party fails to comply with this Act or the requirements of any judicial proceeding.

(c) If a transferee does not take free of the rights and interests described in subsection (a), the transferee takes the collateral subject to:

(1) the debtor's rights in the collateral;

(2) the security interest under which the disposition is made; and

(3) any other security interest or other lien.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-15, PTN Code § 13-6-15

PTN Code § 13-6-16
Section 13-6-16. Rights and Duties of Certain Secondary Obligors

(a) A secondary obligor acquires the rights and becomes obligated to perform the duties of the secured party after the secondary obligor:

(1) receives an assignment of a secured obligation from the secured party;

(2) receives a transfer of collateral from the secured party and agrees to accept the rights and assume the duties of the secured party; or

(3) is subrogated to the rights of a secured party with respect to collateral.

(b) An assignment, transfer, or subrogation described in subsection (a):

(1) is not a disposition of collateral under Section 13-6-9; and

(2) relieves the secured party of further duties under this Act.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-16, PTN Code § 13-6-16



PTN Code § 13-6-17
Section 13-6-17. Transfer of Record or Legal Title

(a) In this section, “transfer statement” means a record authenticated by a secured party stating:

(1) that the debtor has defaulted in connection with an obligation secured by specified collateral;

(2) that the secured party has exercised its post-default remedies with respect to the collateral;

(3) that, by reason of the exercise, a transferee has acquired the rights of the debtor in the collateral; and

(4) the name and mailing address of the secured party, debtor, and transferee.

(b) A transfer statement entitles the transferee to the transfer of record of all rights of the debtor in the collateral specified in the statement in any official filing, recording, registration, or certificate-of-title system covering the collateral. If a transfer statement is presented with the applicable fee and request form to the official or office responsible for maintaining the system, the official or office shall:

(1) accept the transfer statement;

(2) promptly amend its records to reflect the transfer; and

(3) if applicable, issue a new appropriate certificate of title in the name of the transferee.

(c) A transfer of the record or legal title to collateral to a secured party under subsection (b) or otherwise is not of itself a disposition of collateral under this Act and does not of itself relieve the secured party of its duties under this Act.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-17, PTN Code § 13-6-17




PTN Code § 13-6-18
Section 13-6-18. Acceptance of Collateral in Full or Partial Satisfaction of Obligation; Notification of Proposal; Effect of Acceptance; Compulsory Disposition of Collateral

(a) Except as provided in subsection (e), a secured party may, after default, propose to retain the collateral in full satisfaction of the obligation it secures or, in a transaction other than a consumer transaction, in partial satisfaction of such obligation.

(b) The secured party shall send notice of such proposal to:

(1) the debtor;

(2) any person from whom the secured party has received, before the debtor consented to the acceptance, a signed notification of a claim of an interest in the collateral;

(3) any person that, fourteen (14) calendar days before the debtor consented to the acceptance, held a security interest in or other lien on the collateral perfected by means of a financing statement or compliance with other law (Section 13-3-10(a)) that makes such interest reasonably discoverable; and

(4) if the proposal is for partial satisfaction of the obligation, any secondary obligor.

(c) The proposal is not effective unless it is covered by subsection (a) and:

(1) the debtor consents to the acceptance in a record signed after default;

(2) no other person specified in subsection (b), and no other person holding an interest in the collateral subject to the secured party's interest, objects to the acceptance within 14 tribal business days after notification was sent;

(3) if the collateral is consumer goods, the collateral is not in the possession of the debtor when the debtor consents to the acceptance

(d) A secured party's acceptance of collateral pursuant to this section

(1) discharges the obligation to the extent consented to by the debtor;

(2) transfers to the secured party all of the debtor's rights in the collateral;

(3) discharges the security interest that is the subject of the debtor's consent, and any security interest or other lien or interest that is subordinate thereto, even if the secured party accepting the collateral fails to comply with this article.

(e) A secured party that has taken possession of collateral shall dispose of the collateral pursuant to Sections 13-610 through 13-616 if:

(1) 60 percent of the cash price has been paid in the case of a purchase-money security interest in consumer goods; or

(2) 60 percent of the principal amount of the obligation secured has been paid in the case of a non-purchase-money security interest in consumer goods.

Such disposition shall be made within ninety (90) calendar days after taking possession, or within any longer period to which the debtor and all secondary obligors have agreed in an agreement to that effect entered into and signed after default.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-18, PTN Code § 13-6-18




PTN Code § 13-6-19
Section 13-6-19. Right to Redeem Collateral

(a) A debtor, any secondary obligor, or any other secured party or lienholder may redeem collateral.

(b) To redeem collateral, a person shall tender:

(1) fulfillment of all obligations secured by the collateral; and

(2) the reasonable expenses and attorney's fees described in Section 13-6-14(a)(1), dealing with application of proceeds of disposition.

(c) A redemption may occur at any time before a secured party:

(1) has collected collateral under Section 13-6-7;

(2) has disposed of collateral or entered into a contract for its disposition under Section 13-6-9; or

(3) has accepted collateral in full or partial satisfaction of the obligation it secures under Section 13-6-18.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-19, PTN Code § 13-6-19




PTN Code § 13-6-20
Section 13-6-20. Waiver

(a) A debtor or secondary obligor may waive the right to notification of disposition of collateral under Section 13-6-10 only by an agreement to that effect entered into and signed after default.

(b) A debtor may waive the right to require disposition of collateral under Section 13-620(e), which deals with mandatory disposition of consumer goods, only by an agreement to that effect entered into and signed after default.

(c) In a transaction other than a consumer transaction, a debtor or secondary obligor may waive the right to redeem collateral under Section 13-6-20 only by an agreement to that effect entered into and signed after default. In a consumer transaction, a debtor or secondary obligor may not waive such right.

SUBPART 2. NONCOMPLIANCE WITH ACT.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-20, PTN Code § 13-6-20




PTN Code § 13-6-21
Section 13-6-21. Remedies for Secured Party's Failure to Comply With Act

(a) If it is established that a secured party is not proceeding in accordance with this Act, a court may order or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions.

(b) Subject to subsections (c), (d), and (f), a person is liable for damages in the amount of any loss caused by a failure to comply with this Act. Loss caused by a failure to comply may include loss resulting from the debtor's inability to obtain, or increased costs of, alternative financing.

(c) Except as otherwise provided in Section 13-628, which deals with the nonliability and limitations on liability of a secured party and the liability of a secondary obligor:

(1) a person that, at the time of the failure, was a debtor, was an obligor, or held a security interest in or other lien on the collateral may recover damages under subsection (b) for its loss; and

(2) if the collateral is consumer goods, a person that was a debtor or a secondary obligor at the time a secured party failed to comply with this part may recover for that failure in any event an amount not less than the credit service charge plus 10 percent of the principal amount of the obligation or the time-price differential plus 10 percent of the cash price.

(d) A debtor whose deficiency is eliminated under Section 13-6-21, which deals with actions in which a deficiency or surplus is in issue, may recover damages for the loss of any surplus.

(e) In addition to any damages recoverable under subsection (b), the debtor, consumer obligor, or person named as a debtor in a filed record, as applicable, may recover $500 in each case from a person that:

(1) fails to comply with the provisions of this Act dealing with additional duties of a secured party having control of an investment account (Section 13-2-5(b));

(2) fails to comply with the provisions of this Act dealing with duties of a secured party if an account debtor has been notified of assignment (Section 13-2-5(c));

(3) files a record that the person is not entitled to file under Section 13-5-2(g);

(4) fails to file, cause to be filed or send a termination statement as required by Section 13-5-2(f);

(5) fails to comply with the provisions of this Act dealing with explanations of calculations of surplus or deficiency (Section 13-6-15(a)), and whose failure is part of a pattern, or consistent with a practice, of noncompliance.

(f) A debtor or consumer obligor may recover damages under subsection (b) and, in addition, $500 in each case from a person that, without reasonable cause, fails to comply with a request for an accounting (Section 13-2-7). A recipient of a request under Section 13-2-7 which never claimed an interest in the collateral or obligations that are the subject of a request under that section has a reasonable excuse for failure to comply with the request within the meaning of this subsection.

(g) If a secured party fails to comply with a request regarding a list of collateral or a statement of account under Section 13-2-7, the secured party may claim a security interest only as shown in the list or statement included in the request as against a person that is reasonably misled by the failure.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-21, PTN Code § 13-6-21




PTN Code § 13-6-22
Section 13-6-22. Action in Which Deficiency or Surplus is in Issue

(a) In an action arising from a transaction, other than a consumer transaction, in which the amount of a deficiency or surplus is in issue, the following rules apply:

(1) A secured party need not prove compliance with the provisions of this part relating to collection, enforcement, disposition, or acceptance unless the debtor or a secondary obligor places the secured party's compliance in issue.

(2) If the secured party's compliance is placed in issue, the secured party has the burden of establishing that the collection, enforcement, disposition, or acceptance was conducted in accordance with this part.

(3) Except as otherwise provided in the provisions of this Act dealing with nonliability and limitations on liability of a secured party or secondary obligor (Section 13-6-22), if a secured party fails to prove that the collection, enforcement, disposition, or acceptance was conducted in accordance with the provisions of this part relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor for a deficiency is subject to setoff for an amount as stated in the provision of this Act dealing with damages for noncompliance (Section 13-6-20(b)), which may be measured by the amount recovered for conversion of collateral.

(4) For purposes of paragraph (3), the liability of the debtor or a secondary obligor is calculated on the presumption that the proceeds of disposition equal the sum of the secured obligation, expenses, and allowable attorney's fees, but the secured party may rebut the presumption.

(b) The limitation of the rules in subsection (a) to transactions other than consumer transactions is intended to leave to the court the determination of the proper rules in consumer transactions. The court may not infer from that limitation the nature of the proper rule in consumer transactions and may continue to apply established approaches.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-22, PTN Code § 13-6-22

Current through November 1, 2010

(C) 2011 Thomson Reuters. Used by permission of the Ponca Tribe of Nebraska.

END OF DOCUMENT

PTN Code § 13-6-23
Section 13-6-23. Determination of Whether Conduct was Commercially Reasonable

(a) The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or acceptance was made in a commercially reasonable manner.

(b) A disposition of collateral is made in a commercially reasonable manner if the disposition is made:

(1) in the usual manner on any recognized market;

(2) at the price current in any recognized market at the time of the disposition; or

(3) otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

(c) A collection, enforcement, disposition, or acceptance is commercially reasonable if it has been approved:

(1) in a judicial proceeding;

(2) by a bona fide creditors' committee;

(3) by a representative of creditors; or

(4) by an assignee for the benefit of creditors.

Such approval need not be obtained, and lack of approval does not mean that the collection, enforcement, disposition, or acceptance is not commercially reasonable.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-23, PTN Code § 13-6-23



PTN Code § 13-6-24
Section 13-6-24. Nonliability and Limitation on Liability of Secured Party; Liability of Secondary Obligor

(a) Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person, and knows how to communicate with the person:

(1) the secured party is not liable to the person, or to a secured party or lienholder that has filed a financing statement against the person, for failure to comply with this Act; and

(2) the secured party's failure to comply with this Act does not affect the liability of the person for a deficiency.

(b) A secured party is not liable because of its status as secured party:

(1) to a person that is a debtor or obligor, unless the secured party knows:

(A) that the person is a debtor or obligor;

(B) the identity of the person; and

(C) how to communicate with the person; or

(2) to a secured party or lienholder that has filed a financing statement against a person, unless the secured party knows:

(A) that the person is a debtor; and

(B) the identity of the person.

(c) A secured party is not liable to any person, and a person's liability for a deficiency is not affected, because of any Act or omission arising out of the secured party's reasonable belief that a transaction is not a consumer transaction or that goods are not consumer goods, if the secured party's belief is based on its reasonable reliance on:

(1) a debtor's representation concerning the purpose for which collateral was to be used, acquired, or held; or

(2) an obligor's representation concerning the purpose for which a secured obligation was incurred.

(d) A secured party is not liable to any person under Section 13-6-22(c)(2), which deals with statutory damages where the collateral is consumer goods, for its failure to comply with Section 13-6-15, which deals with explanations of calculations of surplus or deficiency.

(e) A secured party is not liable under Section 13-6-20(c)(2), which deals with statutory damages where the collateral is consumer goods, more than once with respect to any one secured obligation.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-24, PTN Code § 13-6-24




PTN Code § 13-6-25
Section 13-6-25. Attorney's Fees in Certain Transactions

If the secured party's compliance with this Act is placed in issue in an Action, the following rules apply:

(1) If the secured party would have been entitled by agreement to attorney's fees as the prevailing party, and the original principal amount of the indebtedness secured does not exceed [$25,000], a debtor or obligor prevailing on the issue is entitled to the costs of the Action and reasonable attorney's fees.

(2) In other cases, the court may award to a consumer debtor or consumer obligor prevailing on that issue the costs of the Action and reasonable attorney's fees.

(3) In determining the attorney's fees, the amount of the recovery on behalf of the prevailing debtor or obligor is not a controlling factor.

CHAPTER 6. DEFAULT

SUBPART 1. DEFAULT AND ENFORCEMENT OF SECURITY INTERESTS

Ponca Tribe of Nebraska Code § 13-6-25, PTN Code § 13-6-25

 

 

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map